SZSKG v Minister for Immigration, Multicultural Affairs & Citizenship

[2013] FCCA 1301

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSKG v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP & ANOR [2013] FCCA 1301

Catchwords:
MIGRATION – Refugee Review Tribunal.
PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation: 

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c).

Applicant: SZSKG

First Respondent: MINISTER FOR IMMIGATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2993 of 2012

Judgment of: Judge Emmett

Hearing date: 9 September 2013

Date of Last Submission: 9 September 2013

Delivered at: Sydney

Delivered on: 9 September 2013

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondent: Ms Bernadette Rayment (Sparke Helmore)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2993 of 2012

SZSKG

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court, commenced by way of application filed on 17 December 2012, be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. In support of the application, the solicitor for the first respondent, Ms Rayment, tendered a letter dated 28 August 2013, addressed to the applicant at the applicant’s address for service in Australia. The letter is marked Exhibit 1R. 

3. Exhibit 1R enclosed by way of service upon the applicant the first respondent’s submissions.  Exhibit 1R advised the applicant as to the date, time and location of today’s hearing, and further advised the applicant that if the applicant did not attend today’s hearing that the respondent would seek orders that the matter be dismissed with costs.

4. The applicant attended a directions hearing before me on 15 March 2013.  On that occasion, the applicant was given leave to file and serve an amended application by 3 May 2013, as well as any evidence in support of his application.  The applicant was also directed to file and serve written submissions in support of his application 14 days before the hearing. 

5. The matter was set down for final hearing on 9 September at 10:15am, however the location of the Court room at the time of the directions hearing was different to the location of the Court room for today’s hearing.  To that end, on 9 August 2013, my chambers sent a letter to the applicant, addressed to both the address for service and a post office box address provided by the applicant on his initiating application filed on 17 December 2012. That letter provided the correct details of the location of the Court room where his matter was to be heard today. 

6. The letter addressed to the applicant at the address for service was returned to chambers on 2 September 2013.  However, I am informed that the letter addressed to the applicant at the post office box has not been returned.  I am also informed by Ms Rayment that Exhibit 1R was not returned. I note that Exhibit 1R was sent to the same address as the letter sent from chambers, dated 9 August 2013.

7. At the directions hearing, the applicant elected to participate in the Court’s legal advice scheme. I note that the applicant met with a panel advisor on 9 May 2013 and that written advice was provided to him on 13 May 2013. There has been no document filed by or on behalf of the applicant since that directions hearing, either in accordance with the directions of the Court or otherwise. I note that the grounds of the application make bare assertions, and are otherwise wholly unsupported by particulars or evidence.

8. The grounds of review identified in the application are as follows:

   
   
   

   “1. The Tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable observer.

   2. Tribunal’s over objective in judging the explanation and the response of the applicant at the hearing.

   3. RRT’s unreasonable suspect of the truthfulness of the applicant’s claims just because the applicant was not a witness of truth.

   4. Judicial error of DIAC and RRT in failing to take into account a relevant consideration, namely the evidence given by the applicant.”

1. The first respondent filed written submissions on 28 August 2013 supporting their response filed on 7 January 2013, opposing any relief being granted to the applicant on the basis that the decision of the Refugee Review Tribunal, dated 21 November 2012, affirming a decision of a delegate of the first respondent refusing the applicant a protection visa, is not affected by jurisdictional error

2. In the circumstances, I am satisfied that the applicant is aware of today’s hearing and for whatever reason has chosen not to attend. In the circumstances, the application of the first respondent is appropriate. Accordingly, the proceeding before this Court commenced by way of application, filed on 17 December 2012, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the failure of the applicant to appear at today’s scheduled hearing.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  9 September 2013